IRLF 


A 


Highways 

By 

Dedication 


By 

EDWARD  T.  BISHOP 

Assistant  County  Counsel 
Los    Angeles,    California 


%  *  -•  *    *  - 


\       *  V  ^ 


1 


HIGHWAYS  BY  DEDICATION 


BY 


EDWARD  T.  BISHOP 

ASSISTANT  COUNTY  COUNSEL 

Los  Angeles,  California 


EXCUSE  AND  SCOPE 

No  ambition  to  become  a  literary  light  set  the  task  that  has 
resulted  in  the  following  pages,  but  rather  the  inability  to  answer 
the  same  question  presented  in  multitudinous  ways  by  home- 
steader, road  foreman  and  supervisor :  "Is  it  a  public  highway  ?" 
The  necessity  to  know  the  law  to  be  found  only  in  the  cases 
was  so  compelling,  that  an  exhaustive  examination  of  the  Cali- 
fornia decisions  was  entered  upon. 

That  is  the  excuse  and  the  only  merit  claimed  for  what 
follows. 


COPYRIGHT,  1920,  BY 
EDWARD   T.    BISHOP 


Highways  by  Dedication 

I.    TERMS. 

"Dedication"  is  the  word  most  generally  used  in  the  authori- 
ties to  name  the  process  whereby  land  privately  owned  becomes 
voluntarily  subjected  to  a  public  use. 

"Dedication  of  land  to  a  public  use  is  simply  setting  it 
apart  or  devoting  it  to  that  use." 
Smith  v.  San  Luis  Obispo  (1892),  95  Cal.  463,  466. 

No  attempt  will  be  made  to  list  the  cases  characterizing  the 
matter  in  which  we  are  interested  as  "dedication".  As  excep- 
tions, we  note  that  the  word  "abandon"  is  sometimes  used  to 
express  our  idea:  Babcock  v.  Welsh  (1886),  71  Cal.  400;  Pat- 
terson v.  Munyan  (1892),  93  Cal.  128;  Plummer  v.  Sheldon 
(1892),  94  Cal.  533;  and  in  Rice  v.  Boyd  (1883),  2  Cal.  Unrep. 
196,  it  appears: 

"By  dedication,  he  abandons  the  land  to  the  public  for 
the  use  to  which  he  has  subjected  it." 

See  also: 

Prescott  v.  Edwards  (1897),  117  Cal.  298,  301. 

Section  2618  of  the  Political  Code  uses  both  terms.  As  we 
have  said,  however,  "dedication"  is  the  word  employed  most 
generally,  and  as  there  seems  to  be  no  distinction  made  between 
it  and  "abandon",  we  shall  make  none. 

Of  "dedications"  there  are  said  to  be  two  forms:  Express 
and  implied. 

"The  substantial  difference  between  the  two  consists  in 
the  mode  of  proof.  In  the  former  case,  the  intention  to 
appropriate  the  land  to  public  use  is  manifested  by  some 
outward  act  of  the  owner,  while  in  the  latter  it  is  shown  by 
such  acts  and  conduct,  not  directly  manifesting  the  inten- 
tion, but  from  wrhich  the  law  will  imply  the  intent." 

Sussman  v.  San  Luis  Obispo  Co.   (1899),  126  Cal.  536, 
539. 


42. 


Chief  Justice  Beatty  concurring  in  this  case  said:  "In  my 
opinion  there  is  no  inconsistency  between  the  findings  of  dedi- 
cation and  of  a  prescriptive  right  in  the  public."  A  similar 
distinction,  that  is,  recognizing  not  "express"  and  "implied" 
dedication  but  "dedication"  and  "prescription",  is  found  in 
Schwerdtle  v.  Placer  Co.  (1895),  108  Cal.  589,  where  a  dis- 
cussion of  the  use  of  these  terms  is  quoted  from  a  Massachu- 
setts case.  In  Hartley  v.  Vermillwn  (1903),  141  Cal.  339,  the 
public  is  said  to  have  gained  its  right  to  use  a  road  by  "pre- 
scription or  implied  dedication". 

In  People  v.  Rindge  (1917),  174  Cal.  743,  755,  we  find: 

"It  is  manifest  that  if  a  public  highway  exists  at  all,  it 
exists  by  prescriptive  user  and  not  by  official  acceptance  of 
an  offer  of  dedication." 

In  Bolger  v.  Foss  (1884),  65  Cal.  250,  however,  we  are  told 
that  "prescription"  is  not  the  word  to  use,  but  that  it  is  "dedi- 
cation", of  which  use  is  evidence. 

Whatever  the  correct  term,  we  have,  as  we  shall  find,  two 
classes  of  cases:  Those  where  dedication  is  evidenced  by  some 
affirmative  act  or  expression  of  the  owner;  those  where  the 
dedication  is  implied  from  long  continued,  adverse  use.  These 
we  shall  consider  separately. 

II.     INTENT  AND  OFFER  TO  DEDICATE. 

(a)     Principles  governing. 

Two  of  the  essential  elements  of  dedication  are  intent  to 
dedicate  and  an  offer.  These  two  ingredients  are  so  inex- 
tricably bound  together  that  the  courts  frequently  fail  to  sepa- 
rate them,  and  as  the  offer  is  but  the  manifestation  of  the 
intention,  they  may  properly  be  discussed  together. 

We  find  several  principles  thoroughly  established. 

"The  vital  principle  of  dedication  is  the  intention  to  dedi- 
cate, the  animus  dedicandi." 

Quinn  v.  Anderson  (1886),  70  Cal.  454; 
People  v.  Reed  (1889),  81  Cal.  70; 
Phillips  v.  Day  (1889),  82  Cal.  24; 
Griffiths  v.  Galindo  (1890),  86  Cal.  192; 
Logan  v.  Rose  (1891),  88  Cal.  263; 


Hibbard  v.  Mellville  (1893),  3  Unrep.  879,  33  Pac.  201; 
Silva  v.  Spangler  (1896),  5  Unrep.  277,  43  Pac.  617; 
San  Francisco  v.  Grote  (1898),  120  Cal.  59; 
Eureka  v.  McKay  &  Co.^  (1899),  123  Cal.  666; 
Niles  v.  City  of  Los  Angeles  (1899),  125  Cal.  572; 
Wheeler  v.  City  of  Oakland  (1917),  35  Cal.  App.  671; 
City  of  Venice  v.  Short  Line  etc.  Co.   (1919),  57  C.  D. 
502,  181  Pac.  658. 

"Where  a  dedication  rests  in  acts  and  conduct  and  not 
in  grant,  the  rule  is  well  settled  and  has  been  many  times 
repeated  by  this  court  to  the  effect  that  'property  cannot 
be  taken  for  public  use  without  compensation  unless  the 
owner  is  willing,  and  this  willingness  should  be  mani- 
fested by  clear  and  unmistakable  acts.  Parties  may  not  be 
done  out  of  their  property  by  doubtful  implications,  no 
matter  how  greatly  the  public  may  be  inconvenienced.'  " 

Burk  v.  Santa  Cruz  (1912),  163  Cal.  807,  812. 

"Dedication  is  always  a  question  of  intent,  and  the  acts 
of  the  owner  of  the  property  are  sufficient  to  prove  a  dedi- 
cation only  when  they  are  evincive  of  such  intent,  or,  what 
amounts  substantially  to  the  same  thing,  when  they  are 
such  as  to  estop  him  from  denying  that  such  was  his 
intent." 

Eureka  v.  McKay  &  Co.  (1899),  123  Cal.  666,  670. 

"When  it  is  sought  to  show  that  an  owner  has,  without  a 
conveyance,  divested  himself  of  title  to  land  in  favor  of 
the  public,  by  way  of  gift  or  abandonment,  the  proof  ought 
to  be  such  as  to  clearly  show  that  such  was  the  owner's 
intent." 

Latham  v.  Los  Angeles  (1891),  87  Cal.  514,  519. 

"The  question  of  intent  is  paramount,  and,  unless  such 
intent  expressly  appears,  or  can  be  fairly  inferred  from  the 
acts  of  the  donor,  there  is  no  valid  dedication." 

Silva  v.  Spangler  (1896),  5  Uarep.  277,  281,  43  Pac.  617. 

To  the  same  effect  are  the  following : 

Spaulding  v.  Bradley  (1889),  79  Cal.  449; 
Cerf  v.  Pfleging  (1892),  94  Cal.  131 ; 
Helm  v.  McClure  (1895),  107  Cal.  199; 
San  Francisco  v.  Grote  (1898),  120  Cal.  59. 


(b)  Evidence  of  intent  and  offer,  in  general 

What  evidence  has  satisfied  the  courts  of  the  existence  of 
this  necessary  element  of  dedication?  By  way  of  general  state- 
ment, we  find  that  no  formula  of  word  or  deed  is  necessary  to 
dedicate  land  to  public  use,  but  that  any  act  which  reveals  the 
intent  is  sufficient. 

Harding  v.  Jasper  (1860),  14  Cal.  642; 

Hope  v.  Barnett  (1888),  78  Cal.  9; 

People  v.  Reed  (1889),  81  Cal.  70; 

Smith  v.  San  Luis  Obispo  (1892),  95  Cal.  463. 

In  an  even  earlier  case  we  find: 

"There  are  several  ways  in  which  a  dedication  of  land 
to  the  public  use  as  a  street  or  highway  may  be  made.  It 
may  be  made  by  deed  or  other  overt  act,  or  may  be  pre- 
sumed from  the  lapse  of  time  or  acquiescence  of  the  party." 

San  Francisco  v.  Scott  (1854),  4  Cal.  114,  116. 

In  Kittle  v.  Pfeiffer  (1863),  22  Cal.  484,  the  court  lists  as 
among  the  ways  dedication  can  be  made  the  following: 

(1)  Conveyance,  though  no  grantee  in  esse; 

(2)  Sale  by  reference  to  map  showing  street; 

(3)  Sale  of  lots  bounded  by  street   (whether  to  boun- 
dary or  centre  line). 

"The  offer  of  the  owner  to  dedicate  may  be  manifested 
in  a  hundred  different  ways." 

City  of  Los  Angeles  v.  Kysor  (1899),  125  Cal.  463,  466. 

"Such  intent  need  not  be  manifested  by  any  contract, 
writing  or  express  declaration  of  the  owner.  It  may  be 
implied  from  his  conduct." 

City  of  Venice  v.  Short  Line  Beach  Land  Co.  (1919), 
57  Cal.  Dec.  502. 

"Stronger  evidence  is  required  of  the  dedication    *    *    * 
of  a  country  road  than  of  a  street  in  a  town  or  city." 
Quinn  v.  Anderson  (1886),  70  Cal.  454; 
Harding  v.  Jasper  (1860),  14  Cal.  642. 

(c)  Evidence — maps  of  subdivisions. 

One  of  the  manifestations  of  intent  most  frequently  encoun- 
tered is  found  in  the  platting  of  property  for  sale  showing  a 


highway.  Of  course,  it  is  only  when  the  owner  himself  causes 
the  subdivision  to  be  made  that  the  map  is  of  any  effect,  for 
one's  intention  is  not  proven  by  what  another  has  done. 

Cerf  v.  Pfleging  (1892),  94  Cal.  131; 

City  of  Eureka  v.  McKay  &  Co.  (1899),  123  Cal.  666; 

City  of  Eureka  v.  Fay  (1895),  107  Cal.  166; 

Burk  v.  City  of  Santa  Cruz  (1912),  163  Cal.  807. 

Nor  is  a  reference  to  such  unauthorized  map  by  the  owner  of 
the  land  platted  on  it  evidence  of  an  intent  to  offer  for  dedica- 
tion the  land  shown  as  highways.  {Cerf  v.  Pfleging,  supra,  and 
Eureka  v.  Fay,  supra.} 

But  where  the  owner  of  property  makes  or  causes  to  be  made 
a  map  of  his  land,  showing  a  part  as  a  highway  (or  park),  and 
either  records  it  or  sells  land  by  reference  to  it,  he  thereby 
clearly  shows  his  intent  to  dedicate  the  portion  shown  as  a 
highway  (or  park)  to  public  use. 

Stone  v.  Brooks  (1868),  35  Cal.  489; 

San  Leandro  v.  Le  Breton  (1887),  72  Cal.  170; 

Brown  v.  Stark  (1890),  83  Cal.  636; 

Griffiths  v.  Galindo  (1890),  86  Cal.  192; 

Wolfskill  v.  Los  Angeles  County  (1890),  86  Cal.  405; 

Logan  v.  Rose  (1891),  88  Cal.  263; 

Mills  v.  Los  Angeles  City  (1891),  90  Cal.  522; 

People  v.  Beaudry  (1891),  91  Cal.  213; 

Archer  v.  Salinas  City  (1892),  93  Cal.  43; 

Southern  Pacific  v.  Ferris  (1892),  93  Cal.  263; 

Eureka  v.  Fay  (1895),  107  Cal.  166; 

Koshland  v.  Spring  (1897),  116  Cal.  689; 

Sussman  v.  San  Luis  Obispo  Co.  (1899),  126  Cal.  536; 

City  of  Anaheim  v.  Langenberger  (1901),  134  Cal.  608; 

Los  Angeles  v.  McCollum  (1909),  156  Cal.  148; 

Davidow  v.  Griswold  (1913),  23  Cal.  App.  188; 

People  v.  Langenour  (1914),  25  Cal.  App.  44; 

Eltinge  v.  Santos  (1915),  171  Cal.  278; 

Berton  v.  All  Persons  (1917),  176  Cal.  610; 

Daly  City  v.  Holbrook  (1918),  28  C.  A.  D.  66,  178  Pac. 
725. 


And  see  Prescott  v,  Edwards  (1897),  117  Cal.  298,  where 
instead  of  a  map  the  land  itself  was  marked  off  by  stakes. 

Nor  does  the  fact  that  the  highway  shown  is  a  cul  de  sac 
destroy  the  value  of  the  evidence  (Stone  v.  Brooks  (1868),  35 
Cal.  489,  and  Smith  v.  San  Luis  Obispo  Co.  (1892),  95  Cal. 
463),  even  where  the  cul  de  sac  is  neither  named  nor  labeled. 
(Los  Angeles  v.  McCollum,  supra.) 

In  People  v.  Reed  (1889),  81  Cal.  70,  77,  it  appears,  however, 
"But  it  is  not  the  mere  making  of  the  map,  or  its  deliv- 
ery or  exhibition  to  private  individuals,  that  constitutes  the 
offer  of  dedication  to  the  public,  but  the  filing;  and  where 
the  right  to  claim  the  street  by  the  public  rests  upon  the 
map  alone,  there  is  no  offer  to  be  accepted  until  the  same 
is  filed  for  record." 

Under  the  present  laws,  the  questions  arising  out  of  the 
making  of  a  map  and  recording  it  are  largely  governed  by 
statute.  (Stats.  1907,  p.  290,  as  amended.)  So  far  no  case 
has  arisen  where  the  provisions  of  this  statute  have  not  been 
complied  with  sufficiently  to  establish  a  highway  by  virtue  of 
its  power  yet  where  the  intent  is  manifest  in  an  offer,  and  an 
acceptance  is  in  evidence;  but  it  seems  quite  possible  that  when 
that  case  arises  it  will  be  held  that  while  the  statutory  dedica- 
tion is  not  proven  the  common-law  dedication  is,  and  a  public 
highway  exists.  Such  a  conclusion  would  find  support  in  prin- 
ciple in  People  v.  Marin  Co.  (1894),  103  Cal.  223,  where  the 
procedure  was  too  imperfect  to  establish  a  highway  by  declara- 
tion under  the  statute,  but  nevertheless  resulted  in  proving  a 
dedication. 

(d)     Evidence — reference  in  deeds. 

Evidence  of  the  intent  to  dedicate  is  also  found  in  the  refer- 
ence to  a  road  contained  in  a  deed  conveying  land. 

"It  is  useless  to  cite  authorities  to  maintain  the  proposi- 
tion. So  firmly  has  it  become  established,  that  where  lots 
are  sold  as  fronting  on,  or  bounded  by,  a  certain  space 
designated  in  the  conveyance  as  a  street,  the  use  of  such 
space  as  a  street  passes  as  appurtenant  to  the  grant,  and 
vests  in  the  grantee  in  common  with  the  public  the  right 
of  way  over  such  street;  that  such  acts  on  the  part  of  the 


7- 

grantor  constitute  a  dedication  of  such  street,  and  that  he 
cannot  afterwards  so  sell  or  dispose  of  it  as  to  alter  or 
defeat  such  dedication." 

Breed  v.  Cunningham  (1852),  2  Cal.  361,  368. 

Expressing  a  similar  conclusion  are  City  of  Eureka  v.  Gates 
(1902),  137  Cal.  89,  and  City  of  Eureka  v.  Armstrong  (1890), 
83  Cal.  623.  The  case  last  cited  further  holds  that  the  intent 
thus  shown  is  an  intent  to  dedicate  a  street  the  length  of  the 
block,  not  just  a  cul  de  sac. 

In  Helm  v.  McClure  (1895),  107  Cal.  199,  sales  of  lots  on  a 
cul  de  sac,  together  with  evidence  of  declarations  that  it  was  a 
street,  were  found  to  be  sufficient  to  justify  the  finding  that  an 
intent  to  dedicate  had  existed  and  found  expression. 

Dedication  was  found  in  Santa  Ana  v.  Santa  Ana  Valley  Irr. 
Co.  (1912),  163  Cal.  211,  from  a  statement  in  certain  deeds 
reserving  "for  road  purposes"  two  strips  of  land  each  25A  wide, 
lying  adjacent  to  each  other.  This  reservation  alone,  it  was 
stated,  was  not  inconsistent  with  finding  this  to  be  a  private 
road,  but  taken  in  conjunction  with  subsequent  acts  the  conclu- 
sion that  there  was  an  intention  to  dedicate  the  land  to  public 
use  was  held  to  be  clear. 

A  conveyance  of  a  ten- foot  strip  for  street  purposes,  in  con- 
nection with  the  conveyance  of  a  lot  for  private  purposes,  was 
held  in  Wheeler  v.  City  of  Oakland  (1917),  35  Cal.  App.  671, 
to  be  sufficient  proof  that  the  strip  was  intended  to  be  used  as 
a  public  highway. 

(e)     Evidence — statements — res  gestae. 

In  addition  to  the  mere  making  of  a  deed,  or  map,  the  state- 
ments made  in  connection  with  the  conveyance  are  to  be  consid- 
ered in  deciding  whether  or  not  a  dedication  has  been  made. 

"The  declarations  of  a  party  while  engaged  in  the  per- 
formance of  an  act,  and  illustrating  the  object  and  intent 
of  its  performance,  are  admissible  in  evidence." 
Tait  v.  Hall  (1886),  71  Cal.  149. 

To  the  same  effect  is  People  v.  Blake  (1882),  60  Cal.  497,  and 
see  Helm  v.  McClure  (1895),  107  Cal.  199. 


8 

In  Sussman  v.  San  Luis  Obispo  Co.  (1899),  126  Cal.  536, 
the  intent  to  dedicate  was  found  from  statements  publicly  made 
at  the  time  of  the  sale  of  lots  in  a  subdivision  that  a  street 
shown  on  a  map  of  the  subdivision  was  to  be  a  public  highway. 

In  People  v.  Eel  River  etc.  R.  R.  Co.  (1893),  98  Cal.  665, 
the  statement  of  representatives  of  the  railroad  company  made 
during  the  negotiations  leading  up  to  the  purchase  of  a  strip 
of  land  that  it  was  to  be  for  a  public  highway,  was  held  admis- 
sible, and  a  dedication  found.  The  declaration  of  real  estate 
agents  made  to  purchasers,  that  a  way  would  be  left  open,  is 
proper  evidence  of  an  intent  to  dedicate  the  way.  (City  of 
Venice  v.  Short  Line  Beach  Land  Co.  (1919),  57  C.  D.  502, 
181  Pac.  658.)  So  also  were  the  declarations  of  the  owner 
that  he  had  a  map  made  for  convenience  in  deeding  the  land 
to  his  wife,  and  children,  and  that  the  highway  shown  was  not 
to  be  public  unless  paid  for  by  the  public,  properly  admitted  to 
show  that  there  was  no  intent  to  dedicate.  Smith  v.  Glenn, 
(1900),  6  Cal.  Unrep.  519,  62  Pac.  180. 

(f)     Evidence — statement  of  intention. 

A  statement,  not  of  declarations  made  "while  engaged  in  the 
performance  of  an  act,"  but  of  the  intent  hidden  in  the  mind 
of  the  owner  of  the  land  claimed  to  be  subjected  to  a  public 
easement,  is  not  given  much  wreight.  In  commenting  upon  the 
claim  of  error  in  refusing  to  permit  an  expression  of  such 
intent  from  the  witness,  our  Supreme  Court,  in  Brown  v.  Stark 
(1890),  83  Cal.  636,  said  (p.  642)  : 

"Her  unexpressed  intention,  called  for  by  the  question, 
ruled  out  by  the  court,  was  of  no  material  consequence." 

In  Helm  v.  McClure  (1895),  107  Cal.  199,  the  owner  had 
been  allowed  to  testify  that  he  never  intended  to  dedicate  the 
cul  de  sac  claimed.  This  testimony  was  said  to  be  relevant  but 
not  conclusive,  to  be  in  conflict  with  earlier  statements  in  con- 
nection  with  the  sale  of  lots,  and  the  judgment  finding  that 
there  was  dedication  was  approved. 

A  somewhat  similar  situation  in  Eureka  v.  Gates  (1902), 
137  Cal.  89,  brought  forth  the  comment:  "her  unaided  testi- 


mony  now  as  to  what  she  intended  by  her  deed  cannot  be  taken 
as  against  the  deed  itself." 

In  City  of  Los  Angeles  v.  McCollum  (1909),  156  Cal.  148,  a 
map  had  been  filed  showing  a  highway,  but  the  owner  wanted 
to  testify  that  he  had  no  intent  to  dedicate  the  street.  His 
desire  was  commented  on  as  follows  (p.  152)  : 

"The  rule  that  the  party  may  give  testimony  of  his  actual 
intent  should,  we  think,  be  limited  to  cases  where  the  acts 
done  by  him  do  not  manifestly  indicate  an  intent  to  dedi- 
cate. Where  they  are  inconsistent  with  anything  but  such 
intent,  he  cannot  destroy  the  effect  of  his  own  conduct  by 
subsequent  declarations  that  he  did  not  mean  to  be  bound 
by  the  necessary  import  of  that  conduct.  No  weight 
should  be  given  to  declarations  of  an  intent  contrary  to  that 
plainly  shown  by  acts  done  and  acted  on  long  before." 

(g)     Evidence — fences  and  gates. 

Evidence  of  an  express  intent  to  dedicate  is  found  when  the 
owner  moves  his  fence  back  from  his  property  line  to  the  edge 
of  what  thereafter  becomes  a  road,  L.  A.  Cemetery  Ass'n  v. 
City  of  Los  Angeles  (1893),  3  Cal.  Unrep.  783,  32  Pac.  240; 
or  when  he  builds  fences  on  both  sides  of  an  open  strip 
through  his  place,  Smith  v.  City  of  San  Luis  Obispo  (1892), 
95  Cal.  463. 

"This  fencing  of  the  road  would  appear  to  constitute  a 
clear  and  explicit  intention  of  dedication  to  the  public." 

Sherwood  v.  Ahart  (1917),  35  Cal.  App.  83,  86. 

Gates  across  the  highways  are  usually  held  to  be  strong  evi- 
dence that  the  use  is  permissive  and  not  under  claim  of  right 
founded  on  dedication. 

Quinn  v.  Anderson  (1886),  70  Cal.  454; 

Smithers  v.  Fitch  (1889),  82  Cal.  153; 

Hibberd  v.  Mellville  (1893),  3  Cal.  Unrep.  879,  33  Pac. 

201; 
Huffman  v.  Hall  (1894),  102  Cal.  26. 

But  a  finding  of  use  will  not  be  overcome  by  a  finding  that 
gates  were  maintained,  which  allowed  of  passage,  Bolger  v. 
Foss  (1884),  65  Cal.  250;  and  where  permission  to  maintain  a 


10 

gate  was  sought  from  a  member  of  the  Board  of  Supervisors, 
this  was  regarded  rather  an  acknowledgment  than  a  denial  of 
the  public  right. 

Schwerdtle  v.  Placer  County  (1895),  108  Cal.  589. 

(h)     Evidence — assessments  and  taxation. 

Whether  or  not  the  land  claimed  to  be  a  highway  has  been 
assessed  and  the  taxes  thereafter  levied  paid,  or  whether  the 
contrary  is  true,  is  of  no  interest,  and  furnishes  no  clue  either 
to  dedication  or  lack  of  it.  In  the  following  cases  the  land  was 
assessed  and  the  taxes  paid: 

San  Leandro  v.  Le  Breton  (1887),  72  Cal.  170; 

Mills  v.  City  of  Los  Angeles  (1891),  90  Cal.  522; 

Smith  v.  City  of  San  Luis  Obispo  (1892),  95  Cal.  463; 

Schmitt  v.  San  Francisco  (1893),  100  Cal.  302; 

Schwerdtle  v.  Placer  County  (1895),  108  Cal.  589; 

Wheeler  v.  City  of  Oakland  (1917),  35  Cal.  App.  671; 

City  of  Venice  v.  Short  Line  Beach  Land  Co.  (1919),  57 
C.  D.  502,  181  Pac.  658. 

In  Burk  v.  Santa  Cruz  (1912),  163  Cal.  807,  the  land  was 
not  assessed,  but  this  was  held  to  be  no  defense  to  the  plain- 
tiff's claim  that  the  so-called  road  was  in  fact  private  land. 

(i)     Who  can  offer  to  dedicate? 

The  following  cases  answer  this  question  in  one  way  or 
another,  and  may  be  of  interest. 

The  City  of  San  Francisco,  by  a  void  ordinance,  had  at- 
tempted to  establish  out  of  her  pueblo  lands  a  public  square. 
The  legislature  approved  the  ordinance,  thereby  establishing  a 
square  without  necessity  of  further  public  action. 

Hoadley  v.  San  Francisco  (1875),  50  Cal.  265. 

In  the  following  cases,  the  "dedication"  was  made  by  the 
action  of  cities: 

Mills  v.  City  of  Los  Angeles  (1891),  90  Cal.  522; 
People  v.  Beaudry  (1891),  91  Cal.  213; 
San  Francisco  v.  Burr  (1895),  108  Cal.  460. 


11 

Dedication  may  be  proven  by  the  acts  and  representations  of 
a  corporation  as  well  as  those  of  individuals. 

People  v.  Eel  River  etc.  Co.  (1893),  98  Cal.  665; 
Sussman  v.  San  Luis  Obispo  Co.   (1899),  126  Cal.  536; 
Southern  Pacific  v.  Pomona  (1904),  144  Cal.  339; 
City  of  Venice  v.   Short' Line  Beach  Land  Co.    (1919), 
57  C.  D.  582. 

In  Southern  Pacific  Co.  v.  Hyatt  (1901),  132  Cal.  240,  it 
was  held  that  a  railroad  company  could  not  permit  any  of  its 
land  to  be  alienated.  On  its  facts,  this  case  is  in  harmony  with 
the  authorities  (Central  Pacific  Ry.  Co.  v.  Droge  (1915),  171 
Cal.  32;  Northern  Pacific  Ry.  Co.  v.  Townsend  (1903),  190 
U.  S.  267;  H.  A.  &  L.  D.  Holland  Co.  v.  N.  P.  Ry.  Co.  (1913), 
208  Fed.  598),  the  land  in  question  being  part  of  the  public 
lands  conveyed  to  the  railroad  company  for  a  right-of-way,  but 
its  broad  statement  is  in  conflict  with 

People  v.  Eel  River  etc.  R.  R.  Co.  (1893),  98  Cal.  665; 

Southern  Pacific  v.  City  of  Pomona  (1904),  144  Cal.  339, 
and  the  weight  of  authority  elsewhere. 

Not  a  few  of  our  highways  owe  their  existence  to  a  grant 
made  by  the  federal  government.  In  1866  (sec.  2477,  R.  S. 
U.  S.),  Congress  provided: 

"The  right  of  way  for  the  construction  of  highways 
over  public  lands,  not  reserved  for  public  uses,  is  hereby 
granted." 

Any  use  which  would  be  sufficient  under  the  state  law  to  estab- 
lish a  highway  is  a  sufficient  acceptance  of  this  federal  offer. 

McRose  v.  Bottyer  (1889),  81  Cal.  122; 

Bequette  v.  Patterson  (1894),  104  Cal.  282; 

People  v.  Quong  Sing  (1912),  20  Cal.  App.  26. 


See: 


Schwerdtle  v.  Placer  Co.  (1895),  108  Cal.  589. 


Some  of  the  early  pueblos  received  land  from  the  United 
States  Government  for  use  as  public  highways.  Some  of  the 
cases  referring  to  this  source  are: 

Hoadley  v.  San  Francisco  (1875),  50  Cal.  265; 

People  V.  Beaudry  (1891),  91  Cal.  213. 


12 

Contrary  to  not  a  little  popular  opinion,  there  is  no  right-of- 
way  by  necessity  recognized  over  government  land. 

United  States  v.  Rindge  (1913),  208  Fed.  611. 

III.     ACCEPTANCE  AND  REVOCATION. 

(a)     Is  acceptance  an  element  of  dedication? 

We  have  discussed  two  of  the  elements  of  dedication,  the 
intent  to  dedicate  and  the  offer.  Drawing  an  analogy  from  the 
field  of  contracts,  we  would  expect  to  find  (1)  that  to  com- 
plete the  dedication  the  offer  must  be  accepted,  and  (2)  that 
until  so  accepted,  it  may  be  withdrawn.  These  are  the  conclu- 
sions reached,  but  not  without  a  great  deal  of  confusion  of 
thought  and  conflict  of  authority. 

We  have  first  those  cases  holding  that  an  offer  of  dedication, 
evidenced  by  the  filing  of  a  subdivision  map,  becomes  irrevo- 
cable if  lots  are  sold  with  reference  to  the  map.  Such  is  the 
holding  of  Town  of  San  Leandro  v.  Le  Breton  (1887),  72  Cal. 
170,  followed  in  Daly  City  v.  Holbrook  (1918),  28  C.  A.  D.  66; 
178  Pac.  725.  As  to  acceptance,  the  statement  is  made  that  no 
formal  acceptance  was  necessary,  and  that  the  owner  held  "the 
title  of  the  property  dedicated  in  trust  for  the  public"  until 
formal  acceptance  was  possible. 

Then  we  have  a  distinction  made,  as  in  Archer  v.  Salinas 
City  (1892),  92  Cal.  43,  between  "actual  dedication  and  an 
offer  to  dedicate."  "In  the  latter  case,  there  must  be  an  accept- 
ance on  behalf  of  the  public  before  the  dedication  is  complete, 
and  the  owner  may  at  any  time  before  such  acceptance  revoke 
the  offer,  while  in  the  former  case  the  acceptance  will  be  pre- 
sumed from  the  benefit  arising  from  the  dedication."  It  would 
seem  that  the  mere  recording  of  a  map  is  only  an  offer  to  dedi- 
cate, but  that  if  lots  are  sold  by  reference  to  the  map  "actual 
dedication"  takes  place.  It  also  appears  that  "if  the  dedication 
is  complete  by  his  act,  whether  express  or  implied,  it  is  there- 
after irrevocable  by  him."  But  a  little  later  it  appears.  "The 
owner,  after  selling  some  of  the  lots  according  to  such  map, 
might,  either  with  the  consent  of  the  purchasers,  or  if  he  should 


13 


himself  repurchase  all  of  the  lots  so  sold,  withdraw  such  offer 
at  any  time  before  the  public  had  acquired  any  interest  in  the 
streets,  either  from  formal  acceptance  or  by  actual  user." 

Myers  v.  City  of  Oceanside  (1907),  7  Cal.  App.  87,  repeats 
the  statements  above  made  to  the  effect  that  in  the  case  of  a 
complete  dedication  no  acceptance  is  required,  citing  San  Lean- 
dro  v.  Le  Breton,  supra,  but  holds  that  as  the  facts  did  not 
present  a  case  of  complete  dedication,  the  offer  to  dedicate 
could  be  revoked,  and  having  been  there  was  no  dedication. 

Relying  upon  San  Leandro  v.  Le  Breton  and  Archer  v.  Sali- 
nas City,  supra,  we  have  Davidow  v.  Griswold  (1913),  23  Cal. 
App.  188,  holding  that  where  an  owner  records  a  map  of  a 
townsite  and  sells  lots  with  reference  to  it,  he  "has  voluntarily 
placed  himself  in  a  position  where  equity  will  not  permit  him  to 
deny  thereafter  that  the  said  streets  and  parks  are  as  repre- 
sented by  him;  and,  independent  of  the  statement  that  they 
have  been  dedicated  to  public  use,  the  other  acts  of  the  owner, 
considered  in  connection  with  the  said  purchases  under  the 
conditions  mentioned,  would  preclude  the  said  owner  from 
contending,  at  least  as  far  as  said  purchasers  are  concerned, 
that  they  are  not  streets  and  parks.  And  if  they  are  to  be 
considered  as  really  streets  and  parks,  when  we  regard  the 
rights  of  the  purchasers,  it  is  difficult  to  understand  how  their 
status  would  be  changed  when  we  regard  the  rights  of  the 
public  generally." 

In  Schmitt  v.  San  Francisco  (1893),  1(30  Cal.  302,  Archer  v. 
Salinas  City,  supra,  was  quoted  from  with  approval,  and  the 
matter  summed  up  as  follows  (p.  307)  : 

"In  other  words,  if  the  dedication  has  not  been  accepted 
or  the  property  used  by  the  public,  it  is  purely  a  question  of 
estoppel  in  pais.  If  no  one  has  acted  upon  the  offer  in 
such  a  mode  that  they  would  be  injured  by  the  revocation, 
the  owner  may  revoke  the  dedication,  even  though  it  be  an 
actual  dedication  and  not  a  mere  offer." 

See  also  expressions  in : 

Schmitt  v.  San  Francisco  (1893),  100  Cal.  302; 
Prescott  v.  Edwards  (1897),  117  Cal.  298; 
City  of  Los  Angeles  v.  McCollum  (1909),  156  Cal.  148; 
People  v.  Langenour  (1914),  25  Cal.  App.  44. 


14 

The  doctrine  of  these  cases  may  be  summarized  as  follows: 
Where  an  owner  files  of  record  a  plat  showing  parks  or  streets, 
he  offers  these  parks  or  streets  for  dedication;  the  dedication 
is  not  complete  until  the  offer  is  accepted,  and  until  accepted, 
either  formally  or  by  public  use,  it  may  be  revoked.  But  where, 
after  such  offer  is  made,  lots  are  sold  by  reference  to  the  plat, 
at  least  in  so  far  as  the  streets  or  parks  of  benefit  to  the  par- 
cels sold  are  concerned,  there  is  a  complete,  irrevocable  dedica- 
tion, without  acceptance  or  user,  because  the  owner  is  estopped 
to  deny  his  dedication. 

This  doctrine,  however,  does  not  stand  unchallenged.  In 
Hayward  v.  Manser  (1886),  70  Cal.  476,  we  find  a  case  where 
maps  were  recorded  and  some  sales  made  under  the  map,  yet 
the  court  concludes :  ( 1 )  That  "howsoever  it  may  have  been 
as  to  the  few  persons  who  had  purchased  lots  according  to  said 
map,  whose  rights  in  the  premises  we  do  not  now  determine," 
as  to  the  public  there  had  been  no  acceptance,  and  there  was 
therefore  no  irrevocable  dedication,  and  the  offer  to  dedicate 
could  be  withdrawn;  (2)  that  the  plaintiff  had  title  by  adverse 
possession,  "since  what  they  claimed  to  belong  to  a  street  had 
toever  been  dedicated,  used,  or  accepted  as  such." 

People  v.  Reed  (1889),  81  Cal.  70,  was  an  action  to  declare 
a  strip  of  land  a  public  street.  The  owner  had  made,  but  never 
filed,  a  plat  showing  streets,  and  considerable  sales  had  been 
made  from  the  map,  but  not  of  parcels  fronting  on  the  street  it 
was  sought  to  open.  The  following  discussion,  characterized  as 
dictum  in  some  of  the  contrary  decisions  already  noted,  is, 
nevertheless,  in  answer  to  objections  raised  in  the  case  and  is 
of  interest  (pp.  78-80)  : 

"It  is  conceded  by  counsel  for  respondent  that  the  por- 
tion of  the  street  in  controversy  'has  never  been  opened  as 
a  street/  and  that  'on  it  the  defendant  had  maintained  a 
barn  and  shed  and  kept  it  inclosed  with  substantial  fences 
for  more  than  twenty  years  before  this  suit.'  They  take 
the  position,  however,  that  where  the  owner  surveys  and 
plats  his  property,  and  makes  sales  of  lots  with  reference 
to  such  plat,  the  streets  designated  thereon  are  irrevocably 
dedicated  to  the  public  as  streets.  There  are  authorities 
sustaining  this  position.  *  *  * 


"But  it  is  manifest  that  no  such  rule  can  prevail  in  this 
state,  where  it  has  been  uniformly  held  that  the  owner  may, 
at  any  time  before  his  offer  of  dedication  is  accepted  by  the 
public,  withdraw  the  same.  As  between  him  and  the  pub- 
lic, therefore,  his  act  alone  is  not  sufficient  to  constitute  an 
irrevocable  dedication.  As  we  have  said,  it  may  be  dif- 
ferent as  between  him  and  private  individuals  to  whom  he 
has  made  sales  of  property  with  reference  to  the  map. 
Much  of  the  confusion  in  the  decided  cases  has,  in  our 
judgment,  grown  out  of  the  failure  to  distinguish  between 
the  right  of  the  public  authorities  to  claim  a  dedication  and 
the  right  of  a  purchaser  to  compel  the  opening  of  a  street 
on  the  ground  of  estoppel.  (Holdaw  v.  Trustees  etc.,  21 
N.  Y.  474;  Child  v.  Chap  pel,  9  N.  Y.  257.)  In  the  case 
of  Grogan  v.  Hayward,  6  Saw.  498,  relied  upon  by  the 
respondent,  which  was  an  action  by  a  private  individual, 
this  distinction  is  clearly  made.  If  the  purchaser  of  prop- 
erty asserts  his  rights,  the  result  may  be  the  same,  as  to 
the  mere  keeping  open  of  the  street,  as  if  a  dedication  is 
claimed  by  the  public;  but  it  does  not  follow  that  if  he 
waives  his  right,  the  public  can  assert  it,  nor  can  the  pur- 
chaser, by  asserting  his  right  to  an  open  way,  impose  on 
the  public  the  duty  of  keeping  a  street  in  repair  that  has 
never  been  accepted. 

"The  case  of  San  Leandro  v.  Le  Breton,  72  Cal.  172, 
seems  to  overlook  this  plain  distinction  between  the  right 
of  a  purchaser  and  the  public,  but  there  it  appeared  that 
there  was  an  acceptance  by  the  public  authorities,  so  that, 
so  far  as  the  opinion  can  be  construed  as  militating  against 
the  rule  above  laid  down,  it  is  a  mere  dictum,  and  should 
have  no  weight. 

"Therefore,  conceding  that  a  platting  of  property  and 
sale  of  lots  constitutes  a  dedication,  as  between  the  owner 
and  purchasers  under  him,  of  the  streets  delineated  on  the 
map,  in  order  to  constitute  a  dedication  which  can  be 
taken  advantage  of  by  the  public  authorities  of  a  city,  the 
offer  of  dedication  must  have  been  accepted  by  such  au- 
thorities, either  by  user  or  some  formal  act  of  accept- 
ance. *  *  * 

"Such  acceptance  must  be  within  a  reasonable  time  after 
such  offer  of  dedication,  and  if  not  accepted,  the  owner 
may  resume  the  possession  of  the  property  and  thereby 
revoke  his  offer." 

In  Prescott  v.  Edwards  (1897),  117  Cal.  298,  "the  cause  of 
action  and  relief  sought  are  not  made  perfectly  clear,"  but  as 


16 

any  offer  to  dedicate  which  may  have  been  made  had  been 
revoked  before  acceptance  by  the  public  "either  expressly,  im- 
pliedly,  or  presumptively,"  the  court  said  the  whole  question  of 
dedication  was  eliminated  (p.  301)  : 

"In  saying  that  there  is  no  question  of  dedication  in  the 
case,  the  term  'dedication'  is  used  in  its  strictly  legal  sense. 
In  that  sense  dedication  is  a  matter  purely  between  the 
owner  and  the  public.  There  is  no  such  thing  as  a  dedica- 
tion between  the  owner  and  individuals.  The  public  must 
be  a  party  to  every  dedication.  Some  of  the  cases  say  that 
platting  a  tract  of  land,  recording  the  plat,  and  selling  lots 
by  reference  to  such  plat,  constitutes  a  dedication  of  the 
streets  in  favor  of  the  purchasers  of  these  lots,  even 
though  a  dedication  to  the  public  is  not  perfected  and  com- 
pleted. The  statement  is  not  correct  as  a  legal  principle, 
as  may  be  seen  from  what  has  already  been  said." 

The  city  of  Los  Angeles  brought  an  action  to  quiet  title  to  a 
park,  relying  on  the  filing  of  a  subdivision  map  followed  by 
sales.  On  appeal,  our  Supreme  Court  said  (City  of  Los  An- 
geles v.  Kysor  (1899),  125  Cal.  463,  6) : 

"Dedication  is  the  joint  effect  of  an  offer  by  the  owner 
to  dedicate  land,  and  an  acceptance  of  such  offer  by  the 
public.  Only  two  parties  are  necessary  to  a  dedication, 
the  owner  upon  the  one  side  and  the  public  upon  the  other. 
There  can  be  no  dedication  without  the  participation  of 
both;  and  no  dedication  can  be  stronger  or  more  binding 
by  the  participation  or  intervention  of  others.  The  offer 
of  the  owner  to  dedicate  may  be  manifested  in  a  hundred 
different  ways;  and  the  acceptance  of  the  offer  by  the 
public  may  be  manifested  in  a  like  number  of  ways.  Again, 
the  fact  that  the  owner  sells  lots  by  reference  to  a  map  of 
the  tract,  duly  recorded,  is  not  at  all  conclusive  evidence  of 
a  dedication  to  the  public  of  the  streets  and  parks  platted 
upon  the  map.  *  *  * 

"Whatever  may  be  the  legal  rights  of  the  purchasers 
from  defendant  of  the  lots  marked  upon  the  recorded  plat, 
by  reference  to  the  plat,  is  a  matter  not  before  us." 

An  action  to  quiet  title  to  a  plaza  is  considered  in  City  of 
Anaheim  v.  Langenberger  (1901),  134  Cal.  608.  The  plaintiff 
contended  that  the  recording  of  a  map  of  a  subdivision  consti- 


17 

tuted  an  offer  to  dedicate  which,   followed  by   sales,   became 
absolute  and  irrevocable.    The  court  said  (p.  609)  : 

"As  a  matter  of  law,  it  cannot  be  said  that  dedication 
follows  from  the  facts  above  set  forth  by  plaintiff.  In- 
deed, as  a  matter  of  fact  we  doubt  if  a  court  would  be 
justified  in  declaring  the  ultimate  fact  of  dedication  to  re- 
sult from  those  probative  facts.  As  far  as  the  city  is  con- 
cerned, the  court  attaches  little  importance  to  the  fact  that 
the  owner  sold  lots  according  to  the  plat  or  map  on  file  in 
the  recorder's  office.  Such  acts  by  the  owner  may  some- 
times indicate  an  intention  to  dedicate  a  street  or  plaza, 
but  in  this  case  an  intention  to  dedicate  is  amply  shown  by 
the  filing  of  the  map.  And  it  may  be  said  that  the  filing  of 
a  map  has  always  been  held  to  constitute  an  offer  to  dedi- 
cate. It  is  said  in  Sacramento  v.  Clunle,  120  Cal.  32:  'In 
the  consideration  of  the  question  here  presented,  it  must  be 
borne  in  mind  that  the  litigation  is  alone  between  the 
owner  and  the  city.  The  question  is  purely  one  of  dedica- 
tion. The  respective  rights  of  the  owners  of  the  blocks 
who  may  have  purchased  from  the  parties  filing  the  map 
are  not  involved.  Such  sales  may  be  some  evidence  of 
intention  to  dedicate,  but  nothing  more.  The  respective 
rights  of  owners  rest  upon  other  and  different  principles  of 
law/  It  thus  appears  that  in  a  case  involving  the  facts 
here  presented,  the  act  of  the  owner  in  selling  lots  accord- 
ing to  the  recorded  plat  is  more  important  as  evidence  in  a 
case  between  the  owner  and  the  purchaser,  than  in  a  case 
where  the  city  is  claiming  a  dedication  to  the  public." 

In  Eltinge  v.  Santos  (1915),  171  Cal.  278,  we  find  a  seeming 
confusion  of  the  two  theories  we  are  reviewing  (p.  282)  : 

"The  findings  do  not  support  the  conclusion  that  there 
was  an  irrevocable  dedication  of  the  strip  of  land  in  ques- 
tion to  the  public  as  part  of  a  street.  The  filing  of  the 
map  showed  an  intention  to  dedicate,  but  nothing  more, 
while  the  filing  of  the  later  map  by  the  investment  com- 
pany, Mitchell's  successor,  evidenced  an  intention  to  with- 
draw the  offer.  Public  dedication  is  a  matter  between  the 
owner  and  the  public — not  between  the  grantor  and  his 
vendees.  The  public  by  use  or  by  formal  action  on  the 
part  of  the  proper  authorities  may  accept  an  offer  of  dedi- 
cation of  a  park  or  street.  (City  of  Los  Angeles  v.  Kysor, 
125  Cal.  466  (58  Pac.  90)  ;  City  of  Anaheim  v.  Langen- 
berger,  134  Cal.  608  (66  Pac.  855).)  It  is  undoubtedly 
true  that  a  vendor  may  be  estopped  to  deny  dedication 
when  he  has  sold  property  to  individuals  on  the  faith  of  a 


18 

recorded  map.  Many  of  the  authorities  so  holding  are 
cited  and  analyzed  in  the  recent  case  of  Davidow  v.  Gris- 
wold,  23  Cal.  App.  189  (137  Pac.  619)— a  case  in  which  a 
petition  for  hearing  in  this  court  was  denied.  But  in  this 
case  the  facts  found  indicate  not  only  that  the  land  in 
controversy  was  not  used  as  a  street,  but  that  a  part  of  it 
could  not  be  so  used,  owing  to  the  existence  of  the  flag 
pole  and  telegraph  pole  at  the  corner  of  the  space  after- 
ward occupied  by  Mr.  Santos'  building.  So  far  as  the 
public  was  concerned,  Mitchell's  successor  had  the  right 
to  revoke  the  offer  of  dedication  if  it  had  not  been  ac- 
cepted either  formally  or  by  user.  (Schmitt  v.  San  Fran- 
cisco, 100  Cal.  307  (34  Pac.  901).)  This  was  done  by  the 
filing  and  recording  of  the  map  in  June,  1903,  showing 
Main  street  as  of  a  uniform  width  of  eighty  feet. 

"But  the  matter  of  plaintiff's  private  easement  is  one 
entirely  different.  Her  predecessors  in  interest  bought 
their  property  by  the  Mitchell  map.  True,  the  first  deeds 
passed  before  the  map  was  recorded,  but  the  descriptions 
referred  to  the  map  and  recognized  the  existence  of  Main 
street  as  delineated  thereon.  The  subsequent  recordation 
of  the  said  map  bound  Mitchell  and  his  successors  so  far 
as  the  sales  to  private  individuals  are  concerned." 

What,  then,  shall  be  our  conclusion?  Except  in  "actual  dedi- 
cation," and  kindred  cases,  acceptance  is  recognized  as  an 
essential  and  the  final  step  in  the  dedication  of  highways. 

Harding  v.  Jasper  (1860),  14  Cal.  642; 

Spaulding  v.  Bradley  (1889),  79  Cal.  449; 

Forsyth  v.  Dunnagan  (1892),  94  Cal.  438; 

Helm  v.  McClure  (1895),  107  Cal.  199; 

City  of  Sacramento  v.  Clunie  (1898),  120  Cal.  29; 

Niles  v.  City  of  Los  Angeles  (1899),  125  Cal.  572. 

See  also  cases  cited  above  and  in  later  discussion.  That  some- 
thing must  be  said  about  acceptance  seems  to  be  felt  even  in 
the  line  of  cases  invoking  estoppel.  Archer  v.  Salinas  City 
says  it  is  assumed  in  "actual  dedications";  from  San  Leandro 
v.  Le  Breton  it  appears  that  when  the  offer  is  irrevocable  the 
title  will  be  held  in  trust  until  acceptance  may  be  made. 

Then,  too,  it  is  agreed  that,  except  in  the  one  case  where  the 
offer  to  dedicate  takes  the  form  of  recording  a  map,  followed 


19 

by  sales  referable  to  the  map,  the  offer  may  be  withdrawn 
before  acceptance  by  the  public. 

Why,  in  this  one  case,  should  the  logical  and  otherwise 
accepted  rule  be  abandoned?  To  be  sure,  private  easements  are 
created. 

McLean  v.  Llewellyn  Iron  Works   (1905),  2  Cal.  App. 

346; 

Danielson  v.  Sykes  (1910),  157  Cal.  686; 
Eltinge  v.  Santos  (1915),  171  Cal.  278. 

And  in  view  of  the  cases  just  reviewed,  it  is  unquestioned  that 
the  purchasers,  and  their  successors,  may  insist  that  the  owner 
be  estopped  to  deny  the  dedication.  But  is  it  correct  to  say,  as 
was  said  in  Davidow  v.  Griswold,  supra,  "This  may  not  be 
dedication  in  the  strict  acceptance  of  that  term,  but  the  result 
is  the  same"? 

We  respectfully  contend  that  the  result  is  not  the  same,  and 
that  dedication  has  not  resulted.  One  difference  is  that  the 
public's  rights  to  a  highway  cannot  be  lost  by  adverse  posses- 
sion, 

Hoadley  v.  San  Francisco  (1875),  50  Cal.  265; 

People  v.  Pope  (1879),  53  Cal.  437; 

Visalia  v.  Jacob  (1884),  65  Cal.  434; 

Ex  parte  Taylor  (1890),  87  Cal.  91; 

London  &  S.  F.  Bank  v.  Oakland  (1898),  90  Fed.  691; 

Kern  I.  Irr.  Co.  v.  Bakersfield  (1907),  151  Cal.  403; 

Koshland  v.  Cherry  (1910),  13  Cal.  App.  440; 

Davidow  v.  Griswold  (1913),  23  Cal.  App.  188; 

Daly  City  v.  Holbrook  (1918),  28  C.  A.  D.  66,  178  Pac, 
725; 

but  the  purchaser's  rights  may  be  destroyed  by  adverse  posses- 
sion. 

Hayward  v.  Manzer  (1886),  70  Cal.  476; 

Phillip  v.  Day  (1889),  82  Cal.  24; 

Anaheim  v.  Langenberger  (1901),  134  Cal.  608; 

and  see  comment  in 

Davidow  v.  Griswold,  supra,  at  page  198. 


20 

Again,  after  the  dedication  is  complete,  the  owner  cannot 
withdraw  his  offer.  How,  then,  can  there  be  a  complete  dedi- 
cation under  the  facts  of  Archer  v.  Salinas  City,  where  the 
court  says  the  owner  could,  after  buying  back  the  lots  sold,  or 
with  the  consent  of  the  purchasers,  withdraw  the  offer  to 
dedicate  ? 

We  conclude  that  if  dedication  is  a  matter  between  the  public 
and  an  owner,  and  it  is,  there  is  no  dedication  until  the  owner's 
offer  is  accepted  by  the  public,  and,  until  accepted,  it  may  be 
revoked,  whatever  may  be  the  rights  of  individual  owners. 

Of  course,  where  the  state  or  a  city  makes  the  dedication, 
if  the  term  may  be  employed  in  such  a  case,  no  acceptance  is 
necessary  to  complete  the  act. 

Hoadley  v.  San  Francisco  (1875),  50  Cal.  265; 
Mills  v.  Los  Angeles  (1891),  90  Cal.  522. 

(b)     Evidence  of  revocation. 

Revocation  may  be  established  by  evidence  as  varied  as  that 
establishing  the  intent. 

A  sale  of  property  in  solido,  including  that  offered  for  dedi- 
cation, but  never  accepted,  operates  as  a  revocation  of  the  offer. 
Hayward  v.  Manzer  (1886),  70  Cal.  476; 
Phillips  v.  Day  (1889),  82  Cal.  24; 
Schmitt  v.  San  Francisco  (1893),  100  Cal.  302; 
Koshland  v.  Spring  (1897),  116  Cal.  689; 
Sacramento  v.  Clunie  (1898),  120  Cal.  29; 
Eureka  v.  McKay  &  Co.  (1899),  123  Cal.  666; 
City  of  Oakland  v.   Oakland  W.   etc.   Co.    (1912),    162 
Cal.  675. 

But  a  sale  of  property  by  reference  to  a  map  and  also  by 
metes  and  bounds,  in  which  one  boundary  is  the  center  line  of 
the  street,  is  not  to  be  considered  a  withdrawal  of  an  offer  to 
dedicate,  as  in  the  case  of  a  conveyance  in  solido. 
Griffiths  v.  Galindo  (1890),  86  Cal.  192. 

The  making  of  a  replat  omitting  the  streets  shown  on  the 
former  plat  results  in  the  withdrawal  of  the  offer  to  dedicate 
evidenced  by  the  first  map. 

Myers  v.  Oceanside  (1907),  7  Cal.  App.  87; 

Eltinge  v.  Santos  (1915),  171  Cal.  278. 


21 

See  also: 

San  Francisco  v.  Burr  (1895),  108  Cal.  460. 

Erecting  a  building  on  land  which  had  been  offered  as  a 
highway  puts  an  end  to  the  offer. 

Prescott  v.  Edwards  (1897),  117  Cal.  298. 

An  adverse  occupancy  of  land  offered  for  dedication  but 
never  accepted,  is  in  itself  a  revocation. 

Anaheim  City  v.  Langenberger  (1901),  134  Cal.  608. 

An  offer  to  dedicate  which  by  its  terms  may  be  withdrawn 
even  after  acceptance,  is  not  an  offer  at  all,  and  cannot  result 
in  a  completed  dedication. 

San  Francisco  v.  Canavan  (1872),  42  Cal.  541. 

(c)  Who  is  the  "public"? 

We  have  reached  the  conclusion  that  to  complete  a  dedica- 
tion, acceptance  by  the  public  is  necessary.  By  the  public  we 
do  not  mean,  necessarily,  any  body  politic  or  any  public  cor- 
poration. 

"When  the  squares  were  dedicated  in  the  mode  already 
stated,  they  were  dedicated  to  public  use;  and  this  use  did 
not  vest  in  the  city,  nor  in  the  inhabitants  of  the  city,  but 
in  the  public  *  *  *  like  the  streets  of  a  city  or  the 
highways  in  a  county." 

Hoadley  v.  San  Francisco  (1875),  50  Cal.  265,  274. 

In  Helm  v.  McClure  (1895),  107  Cal.  199,  the  expression 
appears,  "to  the  wayfaring  uses  of  that  somewhat  vague  entity 
called  'the  public'  ". 

Nor  need  there  be  a  grantee  in  esse  at  the  time  the  easement 
for  highway  purposes  passes  to  the  public. 

Kittle  v.  Pfeiffer  (1863),  22  Cal.  484; 

Carpinteria  School  Dist.  v.  Heath  (1880),  56  Cal.  478. 

(d)  Acceptance  by  public  authorities. 

One  of  the  most  common  methods  of  accepting  highways 
previously  offered  for  dedication  is  the  adoption,  by  the  legis- 
lative body  of  the  county  or  city  having  jurisdiction,  of  a  blan- 


22 

ket  ordinance  or  order,  not  naming  any  particular  streets,  but 
covering  all  highways  hitherto  offered. 

City  of  Eureka  v.  Armstrong  (1890),  83  Cal.  623; 

City  of  Eureka  v.  Gates  (1902),  137  Cal.  89; 

City  of  Los  Angeles  v.  McCollum  (1909),  156  Cal.  148. 

Acceptance  may  be  shown  by  ordering  the  street  opened  for 
public  use. 

Griffiths  v.  Galindo  (1890),  86  Cal.  192. 

Also,  by  securing  additional  territory  to  widen  the  proposed 
street  and  entering  upon  its  improvement. 

Wolfskill  v.  County  of  Los  Angeles  (1890),  86  Cal.  405. 

In  the  last  named  case,  we  find  a  general  statement  to  the  effect 
that  publicly  dealing  with  property  as  a  public  highway  by 
widening,  extending,  grading,  changing  its  name  and  the  like, 
are  acts  tending  to  prove  acceptance. 

(e)     Acceptance  by  public  use. 

However, 

"It  is  not  necessary  that  the  board  of  supervisors  should 
cause  a  road  to  be  recorded  as  such,  to  render  a  strip  of 
land  dedicated  to  the  public  as  a  public  road  a  legal  public 
highway. 

Blood  v.  Woods  (1892),  95  Cal.  78,  85; 

People  v.  Power  (1918),  27  Cal.  Dec.  317,  175  Pac.  803. 

"It  is  not  necessary  that  the  acceptance  by  the  public  be 
manifested  by  any  direct  action,  ordinance  or  declaration 
of  the  public  authorities." 

City  of  Venice  v.  Short  Line  Beach  Land  Co.  (1919), 
57  C.  D.  502,  181  Pac.  658. 

"Such  a  requirement  would  destroy  the  common  law 
doctrine  of  dedication." 

Stone  v.  Brooks  (1868),  35  Cal.  489. 

See  also : 

San  Leandro  v.  Le  Breton  (1887),  72  Cal.  170; 
Wolfskill  v.  County  of  Los  Angeles  (1890),  86  Cal.  405; 
Smith  v.  San  Luis  Obispo  (1892),  95  Cal.  463; 


23 

L.  A.  Cemetery  Ass'n  v.  Los  Angeles   (1893),  32  Pac. 

240,  3  Unrep.  783; 

Monterey  v.  Malarin  (1893),  99  Cal.  290; 
Helm  v.  McClure  (1895),  107  Cal.  199; 
People  v.  Power  (1918),  27  C  A.  D.  317,  175  Pac.  803. 

But  in  these  cases  and  the  following,  use  by  the  public  was 
held  to  be  sufficient  to  prove  the  acceptance  of  the  offer  to 
dedicate. 

Harding  v.  Jasper  (1860),  14  Cal.  642; 

San  Francisco  v.  Canavan  (1872),  42  Cal.  541; 

People  v.  Blake  (1882),  60  Cal.  497; 

Rice  v.  Boyd  (1883),  2  Cal.  Unrep.  196; 

Griffiths  v.  Galindo  (1890),  86  Cal.  192; 

Logan  v.  Rose  (1891),  88  Cal.  263; 

S.  P.  v.  Ferris  (1892),  93  Cal.  263; 

Blood  v.  Woods  (1892),  95  Cal.  78; 

Helm  v.  McClure  (1895),  107  Cal.  199; 

Santa  Ana  v.  Santa  Ana  etc.  Co.  (1912),  163  Cal.  211; 

People  v.  Langenour  (1914),  25  Cal.  App.  44; 

Berton  v.  All  Persons  (1917),  176  Cal.  610. 

What  is  the  nature  and  extent  of  the  use  that  will  prove 
public  acceptance  of  an  offer  of  dedication? 

"In  ascertaining  whether  or  not  a  highway,  park  or  pub- 
lic place  has  been  accepted  by  user,  the  purpose  which  the 
way,  park  or  place  is  fitted  or  intended  to  serve  must  be 
the  standard  by  which  to  determine  the  extent  and  charac- 
ter of  use  which  constitutes  an  acceptance." 
Koshland  v.  Cherry  (1910),  13  Cal.  App.  440. 

"In  considering  the  extent  of  the  use  made  by  the  public 
of  the  strip  in  dispute,  the  fact  that  at  the  time  of  the 
dedication  the  land  was  situated  in  a  sparsely  settled  subur- 
ban community,  and  where  travel  over  it  was  not  very 
great,  is  to  be  considered." 

Wheeler  v.  City  of  Oakland  (1917),  35  Cal.  App.  671, 
675. 

"This  use  must  be  of  such  duration  that  the  public  in- 
terest and  private  rights  would  be  materially  impaired  if 


24 

the  dedication  were  revoked,   and  the   use   by   the   public 
discontinued." 

San  Francisco  v.  Canavan  (1872),  42  Cal.  541,  554. 

Acceptance  may  be 

"manifested  either  by  a  formal  act  of  the  public  authori- 
ties or  by  habitual  user  by  the  public  a  sufficient  length  of 
time  clearly  to  show  that  it  was  thus  recognized,  used,  and 
accepted  by  the  public  as  a  public  highway." 
People  v.  Langenour  (1914),  25  Cal.  App.  44. 

"*  *  *  where  this  actual  consent  and  acquiescence 
can  be  proved,  then  the  length  of  time  of  the  public  use 
ceases  to  be  of  any  importance,  because  the  offer  to  dedi- 
cate, and  the  acceptance  by  use,  both  being  shown,  the 
rights  of  the  public  have  immediately  vested." 

Schwerdtle  v.  County  of  Placer  (1895),  108  Cal.  589, 
593. 

"If  the  right  of  the  public  is  one  derived  from  user 
alone  (prior  to  the  enactment  of  section  2621  of  the  Politi- 
cal Code  in  1883)  the  right  is  no  broader  than  the  use. 
Such  use  over  a  road  with  gates  would  not  authorize  the 
removal  of  the  gates." 

Cordano  v.  Wright  (1911),  159  Cal.  610,  622. 

This  case,  it  is  true,  does  not  present  the  problem  of  dedication 
because  it  relies  on  the  old  statute  of  mere  use,  but  it  would 
seem  that  the  conclusion  reached  would  be  equally  sound  when 
applied  to  adverse  possession,  which  presents  evidence  of  ac- 
ceptance in  its  proof  of  a  presumptive  offer  of  dedication. 

The  use  of  one  of  several  streets  offered  for  dedication  by  a 
subdivision  is  acceptance  of  the  one  and  not  of  the  others. 

Wolfskill  v.  County  of  Los  Angeles  (1890),  86  Cal.  405. 

Where  a  highway  is  offered  for  dedication  by  a  map  or  other 
express  declaration,  a  use  of  less  than  the  full  width  shown  is, 
nevertheless,  held  to  be  an  acceptance  of  the  whole  amount 
offered. 

Southern  Pacific  v.  Ferris  (1892),  93  Cal.  263; 

Santa  Ana  v.  Santa  Ana  etc.  Co.  (1912),  163  Cal.  211; 

People  v.  Langenour  (1914),  25  Cal.  App.  44, 


25 

But  "in  the  case  of  a  highway  by  user  or  dedication,  its  width 
is  limited  by  the  extent  of  the  actual  user  or  dedication." 
Freshour  v.  Hihn  (1893),  99  Cal.  443. 

The  main  travel  does  not  have  to  extend  the  full  width  of  the 
road,  however.  Southern  Pacific  Co.  v.  Pomona  (1904),  144 
Cal.  339.  Perhaps  the  width  of  highways  whose  dedication  is 
proven  by  adverse  use  is  forty  feet,  irrespective  of  the  width  of 
the  actual  use. 

"Where  the  right  of  the  public  is  acquired  by  user,  the 
boundaries  of  the  road  are  generally  ascertained  by  refer- 
ence to  the  user. 

"Where  there  is  a  statute  fixing  the  width  of  all  high- 
ways it  has  been  said  that  the  dedication  to  the  purpose  of 
a  highway  will  be  presumed  to  be  the  width  fixed  by  the 
statute." 

People  v.  Marin  County  (1894),  103  Cal.  223,  231. 

See  also: 

Graham  v.  Bailard  (1909),  157  Cal.  96. 

Dedication  is  not  established  by  proof  of  use  which  cannot 
be  connected  with  an  offer.  Use  is  not  an  acceptance  if  there 
is  nothing  to  accept. 

People  v.  Sperry  (1897),  116  Cal.  593; 

Smith  v.  Glenn  (1900),  6  Unrep.  519,  62  Pac.  180. 

IV.     PRESCRIPTION  OR  IMPLIED  DEDICATION. 

So  far  we  have  been  considering  the  more  or  less  direct  evi- 
dence of  an  intent  and  offer  to  dedicate,  that  is,  cases  of 
"express  dedication".  There  remains  the  cases  of  "implied 
dedication",  where  the  intent  is  said  to  be  presumed  to  exist 
from  adverse  use  continuing  uninterruptedly  for  five  years,  or 
where,  on  whatever  theory,  dedication  is  found  from  such  use. 
We  find  here  some  confusion  in  thought  and  must  proceed 
carefully  if  we  would  be  sure  of  our  ground. 

(a)     Statutes  of  interest. 

At  one  time  there  were  special  statutes  in  force  in  various 
counties,  of  which  section  2  of  "An  act  relative  to  highways  in 


26 

Los  Angeles  county"   (Stats.  1877-78,  p.  6)  is  a  fair  example. 

That  section  declares : 

"All  roads  shall  be  conceded  as  public  highways  which 
have  been  used  as  such  for  five  years,  or  which  may  here- 
after be  used  for  five  years  by  the  public  as  highways." 

In  Southern  Pacific  Company  v.  Pomona  (1904),  144  Cal.  339, 
this  statute  was  under  consideration,  and  it  was  contended : 

"that  the  statute  referred  to  should  be  construed  as  fixing 
the  period,  not  as  defining  the  character  of  the  use  neces- 
sary to  establish  a  dedication  and  do  not  dispense  with  the 
requirement  that  use  alone,  to  create  a  right  in  the  public, 
must  be  adverse." 

In  reply,  the  court  said: 

"The  cases  presently  to  be  cited  make  no  such  distinc- 
tion as  is  urged  by  appellants,  and  the  statute  does  not,  in 
our  opinion,  admit  of  the  construction  contended  for." 

citing  among  others  the  following,  which  support  the  court's 
conclusion : 

Hope  v.  Barnett  (1888),  78  Cal.  9; 

Gloster  v.  Wade  (1889),  78  Cal.  407; 

McRose  v.  Bottyer  (1889),  81  Cal.  122; 

Freshour  v.  Hihn  (1893),  99  Cal.  443  (intent  of  no  in- 
terest), 

and  declaring  that  Huffman  v.  Hall  (1894),  102  Cal.  26,  was 
not  contra.  See  also  Bolger  v.  Foss  (1884),  65  Cal.  250,  where 
the  five  years'  use  is  referred  to  as  the  statute  of  limitations 
rather  than  evidence,  and  its  effect  said  to  be  without  constitu- 
tional objection. 

In  1872,  section  2619  of  the  Political  Code  made  a  provision 
for  the  state  similar  to  that  above  noted  for  Los  Angeles  county. 
It  provided  in  part: 

"2619.  Roads  laid  out  and  recorded  as  highways,  by 
order  of  the  board  of  supervisors,  and  all  roads  used  as 
such  for  a  period  of  five  years,  are  highways." 

In  1874,  this  section  was  amended  by  omitting  "and  all  roads 
used  as  such  for  a  period  of  five  years". 


27 

In  1883,  sections  2618-22  were  re-enacted  after  repealing  the 
old  sections,  and  we  now  find  in  section  2621 : 

"and  no  route  of  travel  used  by  one  or  more  persons  over 
another's  land,  shall  hereafter  become  a  public  road  or 
by-way  by  use,  or  until  so  declared  by  the  board  of  super- 
visors or  by  dedication  by  the  owner  of  the  land  affected." 

Section  2618,  as  enacted  in  1872,  read: 

"2618.  Highways  are  roads,  streets,  or  alleys,  and 
bridges,  laid  out  or  erected  by  the  public,  or  if  laid  out  or 
erected  by  others,  dedicated  or  abandoned  to  the  public." 

In  1883,  section  2618  was  re-enacted  to  read  as  it  now 
appears : 

"2618.  WHAT  ARE  HIGHWAYS.  In  all  counties  of  this 
state  public  highways  are  roads,  streets,  alleys,  lanes,  courts, 
places,  trails,  and  bridges,  laid  out  or  erected  as  such  by 
the  public,  or  if  laid  out  or  erected  by  others,  dedicated  or 
abandoned  to  the  public,  or  made  such  in  actions  for  the 
partition  of  real  property." 

(b)      The  power  of  adverse  use  continues — that  of  mere  use  is 
'ended. 

In  1872,  it  will  be  noted,  we  not  only  had  a  statute  providing 
for  the  establishment  of  a  highway  by  use,  but  also  by  dedica- 
tion. This  use,  it  is  clear,  was  not  necessarily  adverse  in  char- 
acter. In  1883,  the  creative  power  of  "use"  was  ended,  but 
dedication  still  recognized. 

In  the  following  cases,  the  extinction  of  mere  use  as  a  factor 
in  creating  highways,  but  the  survival  of  adverse  use  resulting 
in  dedication,  is  strongly  implied. 

In  Huffman  v.  Hall  (1894),  102  Cal.  26,  stated  in  the  Pomona 
case  not  to  be  in  conflict  with  the  conclusion  that  the  use  of 
the  early  statutes  was  not  necessarily  adverse,  the  statement  is 
made  that  section  2619,  as  amended  in  1874,  "cannot  be  invoked 
as  an  authority  for  the  creation  of  a  highway  by  mere  user," 
and  that  private  property  is  not  to  be  taken  for  public  purposes 
by  use  "unless  the  use  has  been  so  adverse  as  to  prevent  the 
owner  from  asserting  title  thereto,  and  for  this  purpose  it  must 
be  shown  that  the  user  was  adverse." 


28 

In  Sutton  v.  Nicolaisen  (1896),  5  Cal.  Unrep.  348,  evidence 
of  "simple  user"  was  held  not  enough  since  1874,  and  as  there 
was  no  claim  of  adverse  use,  no  highway  could  be  found. 

See  also: 

Schwerdtle  v.  Placer  County  (1895),  108  Cal.  589; 
People  v.  Rindge  (1917),  174  Cal.  743. 

From  the  expressions  used  in  some  of  the  cases  it  is  difficult 
to  say  whether  reliance  is  placed  on  the  colorless  use  given 
creative  power  by  the  code,  or  whether  the  greater  use  recog- 
nized by  the  common  law  is  present  and  relied  upon.  For  such 
see: 

Rice  v.  Boyd  (1883),  2  Cal.  Unrep.  196; 

Babcock  v.  Welsh  (1886),  71  Cal.  400; 

Plummer  v.  Sheldon  (1892),  94  Cal.  533; 

Bequette  v.  Patterson  (1894),  104  Cal.  282; 

Barnes  v.  Daveck  (1908),  7  Cal.  App.  487. 

In  Schwerdtle  v.  Placer  County  (1895),  108  Cal.  589,  we 
have  a  case  where  the  simple  user  of  the  statute  would,  seem- 
ingly, have  justified  the  conclusion  that  the  land  in  question  was 
a  public  highway,  for  it  had  been  used  from  1850  to  1887  with- 
out let  or  hindrance.  But  beyond  the  mere  use,  it  was  found 
"that  the  public,  from  the  year  1850  to  the  year  1887,  used  the 
road  openly,  notoriously,  and  continuously,  and  adversely  to 
plaintiff".  The  court  continued  (p.  593)  : 

"In  the  absence  of  any  statute  the  common-law  rule  as 
to  the  presumption  of  dedication  by  adverse  user  will  apply 
in  this  state,  *  *  *  where  the  claim  of  the  public  rests 
upon  long-continued  adverse  use,  that  use  establishes 
against  the  owner  the  conclusive  presumption  of  consent, 
and  so  of  dedication.  It  affords  the  conclusive  and  indis- 
putable presumption  of  knowledge  and  acquiescence,  while 
at  the  same  time  it  negatives  the  idea  of  a  mere  license." 

Basing  the  decision  on  the  case  just  referred  to,  the  court,  in 
Sherwood  v.  Ahart  (1917),  35  Cal.  App.  84,  finds  a  dedication 
from  like  facts — although  simple  user  under  the  statute  would 
have  sufficed. 

Our  present  statute,  then,  declaring  that  no  route  of  travel 
shall  become  a  highway  by  use,  refers  to  mere  use,  not  such 


29 

adverse  use  as  under  the  common  law  results  in  implied  dedica- 
tion ;  and  even  now  highways  come  into  being  by  use  if  that 
use  is  adverse  for  the  prescriptive  period.  Such  is  now  the 
clearly  expressed  law. 

(c)     Cases  of  implied  dedication. 

In  addition  to  Schwerdtle  v.  Placer  County,  supra,  which  can 
only  be  understood  as  standing  without  the  support  of  any 
statute,  we  have  the  well-considered  case  of  Hartley  v.  Vermil- 
lion  (1903),  141  Cal.  339,  where  the  use  was  between  1889  and 
1899;  People  v.  Myring  (1904),  144  Cal.  351,  where  the  use 
began  late  in  the  year  1878;  and  Lever  one  v.  Weakley  (1909), 
155  Cal.  395,  where  the  findings  do  not  go  back  of  1889.  In 
this  last  named  case,  reference  is  made  to  the  declarations  of 
Schwerdtle  v.  Placer  County,  supra,  and  Hartley  v.  Vermillion, 
supra,  and  the  statement  made:  "This  view  is  not  opposed  to 
anything  contained  in  section  2621  of  the  Political  Code." 

In  Hartley  v.  Ver million,  supra,  the  court  said  (p.  348)  : 

"It  is  a  matter  of  common  knowledge  that  many  roads 
and  highways  in  this  state — starting,  perhaps,  first  as  mere 
trails — became  public  highways  without  any  formal  or  ex- 
press dedication,  but  by  long  uninterrupted  use  and  gen- 
eral acquiescence.  When,  as  in  this  case,  the  public,  or 
such  portion  of  the  public  as  had  occasion  to  use  the  road, 
traveled  over  the  same,  with  full  knowledge  of  the  land- 
owners interested,  without  asking  or  receiving  any  permis- 
sion and  without  objection  from  anyone,  for  a  period  of 
time  beyond  that  required  by  law  to  bar  a  right  of  action, 
a  right  in  the  public  to  the  use  of  the  road  arises  by  pre- 
scription or  implied  dedication." 

Similar  expressions  are  found  in  People  v.  Myring,  supra 
(p.  354)  : 

"The  dedication  of  a  road  as  a  public  highway  is  the 
setting  it  apart  by  the  owner  of  the  land  for  the  use  of  the 
public,  and  the  subsequent  use  thereof  by  the  public  oper- 
ates as  an  acceptance  of  the  same  and  makes  it  a  public 
highway.  Such  dedication  may  be  express,  as  by  a  grant 
to  the  public,  or  it  may  be  implied  from  the  circumstances 
under  which  the  road  is  set  apart  and  used.  The  adverse 
user  of  the  road  by  the  public  with  the  knowledge  of  the 


30 

owner  for  a  period  of  time  corresponding  to  that  fixed  for 
conferring  a  title  by  prescription  establishes  as  against  the 
owner  a  presumption  of  dedication." 

The  case  of  Sussman   r.   .San   Luis   Obispo   County    (1899), 
126  Cal.  536,  it  may  be  argued,  is  a  further  case  in  point. 

In  Barnes  v.  Daveck  (1908),  7  Cal.  App.  487,  we  find  the 
rule  laid  down  that  open  use  of  land  for  highway  purposes 
carries  with  it  a  presumption  that  the  use  is  adverse,  and  the 
burden  of  proof  is  on  those  claiming  that  the  use  is  permissive. 
The  further  principle  is  laid  down  that  the  character  of  adverse 
use  required  is  that  "inconsistent  with  the  owner's  right  to 
claim  exclusive  use;  i.  e,,  such  adverse  use  as  carries  with  it 
the  assertion  of  an  equal  right  by  the  public  to  use  the  high- 
way." 

The  duration  of  the  adverse  use  required  to  establish  a  high- 
way is  that  "fixed  for  conferring  a  title  by  prescription", 
People  v.  Myring  (1904),  144  Cal.  351,  or  a  period  beyond  that 
required  to  bar  a  right  of  action,  Hartley  v.  Vermulion  (1903), 
141  Cal.  339,  that  is,  five  years.  Schwerdtle  v.  Placer  County 
(1895),  108  Cal.  589. 

We  think  it  thoroughly  settled,  then,  that  at  the  present  time 
highways  may  be  established  by  dedication  evidenced  by  five 
years'  adverse  use.  Xor  do  we  feel  that  this  conclusion  is 
shaken  by  the  following  cases,  which  should,  however,  be  kept 
in  mind. 

In  Cooper  v.  Monterey  County  (1894),  1O*  Cal.  437,  the 
court  had  found  that  a  strip  had  "been  continuously  and  unin- 
terruptedly traveled  and  used  by  the  general  public  as  and  for 
a  public  road  or  highway".  This,  the  Supreme  Court  said,  was 
"not  necessarily  inconsistent  with  a  total  absence  of  intention 
to  dedicate,  and  may  indicate  merely  a  license".  In  its  further 
discussion,  the  court  points  out  there  was  "no  allegation  or 
claim  of  adverse  user  or  of  title  by  prescription". 

The  disposition  of  the  question  in  San  Francisco  v.  Grote 
(1898),  120  Cal.  59,  is  curt:  "For  a  period  of  about  eight 
years,  without  either  consent  or  objection  upon  her  part,  the 


31 

land  was  used  by  the  public  generally  for  travel  and  this  was 
all,"  and  this  "all"  was  held  insufficient  to  show  a  dedication. 

In  People  v.  Kludge  (1917),  174  Cal.  743,  "prescriptive  user" 
was  recognized  as  a  possible  source  of  the  creation  of  high- 
ways, but  the  fact  that  settlers,  hunters  and  others  had  been 
allowed  to  use  the  road  was  held  not  to  be  evidence  of  intent 
to  dedicate.  Perhaps  the  federal  case  of  Coburn  v.  San  Mateo 
County  (1896),  75  Fed.  520,  can  be  justified  on  the  same 
theory,  but  with  difficulty  on  any  theory. 

In  Monterey  v.  Malarin  (1893),  99  Cal.  290,  the  court  held 
that  twenty  years'  uninterrupted  use  did  not  warrant  a  judg- 
ment that  there  was  a  highway,  because  "there  was  no  finding 
that  the  owner  ever  intended  or  offered  to  dedicate  *  *  *  or 
ever  had  any  knowledge  of  such  use  by  the  public". 

Where  the  use,  however,  has  all  the  characteristics  that  give 
title  by  prescription,  it  is  safe  to  say  that  proof  of  that  use  will 
warrant  the  conclusion  that  a  highway  exists;  a  highway  of  no 
less  width  than,  and  subject  to  no  restriction  greater  than  those 
governing  the  use. 

V.    NONUSE  OR  ADVERSE  POSSESSION  OF 
HIGHWAYS. 

Just  a  word  seems  in  order  on  the  effect  of  the  adverse  use 
and  nonuse  of  highways.  Until  1874,  Political  Code  section 
2620  provided:  "A  road  not  worked  or  used  for  the  period  of 
five  years  ceases  to  be  a  highway  for  any  purpose  whatever". 
Various  changes  followed,  and  now  (since  1883)  section  2619 
of  the  Political  Code  provides  in  part: 

"All  public  highways,  once  established,  shall  continue  to 
be  public  highways  until  abandoned  by  order  of  the  board 
of  supervisors  of  the  county  in  which  they  are  situated,  or 
by  operation  of  law,  or  judgment  of  a  court  of  competent 
jurisdiction."  (See  also  section  2621.) 

In  McRose  v.  Bottyer  (1889),  81  Cal.  122,  it  is  indicated 
that,  under  this  section  in  conjunction  with  subdivision  4,  sec- 
tion 811,  Civil  Code,  a  highway  not  used  for  five  years  is  ter- 


32 

minated  by  operation  of  law;  and  the  logic  of  the  court  is 
quite  persuasive.  So  far  as  revealed  by  what  may  be  an  incom- 
plete search,  this  conclusion  is  not  shared  by  any  other  case ; 
and  it  cannot  be  reconciled  with  the  principle  that  a  highway 
is  not  lost  by  adverse  possession,  for,  in  case  of  adverse  posses- 
sion, there  is  of  necessity  nonuse.  But  it  is  constantly  averred 
that: 

"No  one  can  acquire  by  adverse  occupation,  as  against 
the  public,  the  right  to  obstruct  a  street  dedicated  to  public 
use,  and  thus  prevent  the  use  of  it  as  a  public  highway." 
People  v.  Pope  (1879),  53  Cal.  437,  451. 

To  the  same  effect,  including  cases  of  partial  obstructions,  are; 
Hoadley  v.  San  Francisco  (1875),  50  Cal.  265; 
Visalia  v.  Jacob  (1884),  65  Cal.  434; 
Ex  parte  Taylor  (1890),  87  Cal.  91 ; 
London  etc.  Bank  v.  Oakland  (1898),  90  Fed.  691 ; 
Kern  etc.  Co.  v.  Bakersfield  (1907),  151  Cal.  403; 
Koshland  v.  Cherry  (1910),  13  Cal.  App.  440; 
Davidow  v.  Griswold  (1913),  23  Cal.  App.  188; 
Daly  City  v.  Holbrook  (1918),  28  C.  A.  D.  66,  178  Pac. 
725. 

In  London  &  S.  E.  Bank  v.  Oakland,  supra,  the  road  in 
question  had  been  used  for  residential  purposes  for  at  least  part 
of  forty  years,  and  it  had  never  been  used  as  a  highway.  Its 
dedication  was  complete,  however,  and  was  held  to  be  "irrevo- 
cable". 

In  Koshland  v.  Cherry,  supra,  the  alley  in  dispute  had  been 
fenced  off  for  twenty-three  years,  but  it  was  held  no  rights 
adverse  to  the  public  had  been  acquired. 

"It  is  hardly  necessary  to  say  that  after  the  dedication 
*  *  *  the  use  of  only  a  portion  *  *  *  by  the  pub- 
lic shows  no  abandonment  of  the  unused  portion." 

Santa  Ana  v.  Santa  Ana  etc.  Co.   (1912),  163  Cal.  211, 

219; 
Graham  v.  Bailard  (1909),  157  Cal.  96. 

A  highway  resulting  from  mere  use  under  the  early  statutes 
continues  after  the  statutes  are  repealed. 

People  v.  Quong  Sing  (1912),  20  Cal.  App.  26. 


33 

It  would  seem,  then,  that  highways  do  not  terminate  from 
nonuse  nor  from  adverse  possession,  but  our  courts  may  yet 
carry  further  the  argument  started  in  McRose  v.  Bottyer,  supra. 


IN  CONCLUSION. 

It  is  evident  that  for  most,  if  not  all,  of  the  problems  arising 
in  relation  to  "highways  by  dedication",  an  answer  may  be 
found  in  the  cases  of  the  appellate  courts  of  our  own  states. 
It  is  likewise  apparent  that  to  date  those  answers  are  not 
altogether  harmonious.  But  through  the  cases  run  recognized 
principles,  and  make  possible,  under  any  state  of  facts,  an  intelli- 
gent and  reasonably  certain  reply  to  the  query:  "Is  this  a 
public  highway?" 


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